At a meeting of lawyers in Hong Kong this April, Aitzaz Ahsan described how as counsel for the Chief Justice of Pakistan in the petition against his unconstitutional removal from office during 2007, neither the president nor any other senior official had even read the charges brought against the judge, which they had signed. Had they done so, they would have noticed that the charge sheet was full of blank paragraphs with the word “deleted” alongside. And anybody looking more closely should also have found that the petitioner had not even presided over an appeal in which he was accused of having struck a deal with one of the parties; yet a number of the judges trying him had.
Although the charges against the Chief Justice of Pakistan were framed in legal terms, neither their factual accuracy nor formal correctness was supposed to have mattered. Politics and military power, not laws and civilian authority, were meant to have determined the judge’s fate. Yet to his credit, as well as to that of his advocate, the Supreme Court bench and the legal community of Pakistan, the court reinstated the judge despite the wishes of a dictator.
The case now running against Burma’s democracy icon, Daw Aung San Suu Kyi, is of the same type. United Nations experts and the Asian Human Rights Commission have pointed out that the charges against her and three other persons are baseless. Suu Kyi is accused of violating the terms of her house arrest by admitting an uninvited guest into the property, after the American citizen allegedly swam across an adjacent lake. But this is not an offence either under the order imposed on her personally or under the sweeping law through which it was issued. On top of this, the case is being tried in a court without jurisdiction, outside of the locality where the alleged offence occurred, with judges from two different districts. The holding of the trial inside the central prison too, like hundreds of others since 2007, is patently illegal.
This neglect of substantive and procedural law is a characteristic not only of the Suu Kyi trial but also of tens of thousands of others in Burma over recent decades, most of which have attracted little if any outside interest. That even in a case of global renown the government’s functionaries have failed to comply with the minimum standards of their own domestic codes indicates that the only rules which really matter in their country now are those laid down in executive decrees.
The trial of Daw Aung San Suu Kyi is, like that of the Chief Justice of Pakistan before it, being driven by political, not legal, imperatives. As the contents of the charges and formalities of procedure matter not to the final outcome, compliance with the law also matters not. But whereas Pakistan’s judiciary has in recent times fiercely demonstrated that the rule of law still carries meaning under its watch, no such thing can be expected in the case of Suu Kyi. For half a century, Burma’s courts have served as mere instruments of policy, not law, and it would be foolish for anyone to be too preoccupied with the legal features of a criminal case in which legal features in the end will count for naught.